| Ill. | May 12, 1892
delivered the opinion of the Court:
This was debt against James M. Smith and his sureties on a bond given in compliance with the requirements of section 5 of the Dram-shop act, and the bond was conditioned for the payment to all persons of all damages that they might sustain, either in person or property or means of support, by reason of said Smith selling or giving aWay any intoxicating liquors. The suit was prosecuted in the name of the People of the State of Illinois, for the use of Anna Williamson. The declaration contained two assignments of breaches. The substance of one was, that said Smith, on divers occasions, sold and gave away intoxicating liquors to William Williamson, the husband of said Anna Williamson, by means whereof said William became, and was habitually intoxicated, and, by reason of so being habitually intoxicated, wasted and squandered his moneys, income and property, and became and was greatly impoverished, reduced, and degraded in mind and body, as well as in his estate, and greatly neglected his duties as a farmer and stock raiser and other business, and thereby said Anna, being his wife, lost and was deprived of her means of support. And the substance of the other was, that on the 12th day of August, 1889, said William Williamson, being in a state of intoxication caused by said Smith selling and giving to him intoxicating liquors, was incapacitated, by reason of such intoxication, from properly and safely managing, driving and controlling a team of horses drawing a wagon in which he was riding, by. means whereof said team ran away and said William Williamson was thrown out of the wagon and killed, and that thereby said Anna Williamson was injured in and deprived of her means of support. Upon the issues formed in the case there was a jury trial, and a verdict and judgment for the penalty of the bond and for $1000 damages, and the judgment was afterwards affirmed in the Appellate Court.
Complaint is made by Smith and the other appellants of some four or five of the instructions which were given on the motion of the plaintiff below, on these grounds: that by them the court submitted to the jury the question of the giving of intoxicating liquors as well as the question of the- selling of such liquors, and also submitted the question whether or hot the beer which William Williamson drank at the saloon of Smith during the afternoon and night of the 12th of August, 1889, was an intoxicating liquor. In.respect to the first objection, suffice it to say that the declaration alleged as well the giving as the selling of intoxicating liquors, and that there was some evidence, though but slight, tending to prove the giving of such liquors. The second objection is likewise untenable. It may be that no witness testified, in positive terms, that the beer that Williamson drank on the 12th day of August was an intoxicating liquor; but that fact, like most, other facts, may be established by other than direct and positive proof, and here the proof was ample that Williamson drank beer very many times during the afternoon, and until about nine o’clock at night, in the saloon of Smith, and became intoxicated, and left there with a bottle of whisky in his pocket. If the direct result of drinking Smith’s beer was intoxication, it may reasonably be presumed that Smith’s beer was an intoxicating liquor. Instruction No. 5 did not assume that beer is an intoxicating liquor, but left it to the jury to determine, from the evidence, whether the death of Mrs. Williamson’s husband “was occasioned by intoxication produced by beer which was intoxicating, or other intoxicating liquors sold or given to him.by the defendant.”
We have difficulty in comprehending the point of the criticism made by appellants on the clause found in instruction No. 6, which reads as follows: “caused from intoxication in whole or in part produced by the sale of intoxicating liquors sold to him by the defendant James M. Smith.” Very plainly this means, “in whole or in part produced by the sale of intoxicating liquors sold to him by the defendant James M. Smith,” and does not mean either “intoxication in whole or in part,” or “caused from intoxication in whole or in part.” We do not see how it could reasonably be understood by the jury otherwise than we have suggested; but even if there was intoxication “in part,” or partial intoxication, yet if such intoxication was sufficient to have “caused” the death of the deceased, we are unable to see why the case is not within the purview of the statute. So, also, if, notwithstanding the intoxication of the deceased, he would not- have been killed if his horses had not run away, yet nevertheless there would be a good cause of action. The very gravamen of the case is, that he, in consequence of his intoxication, was unable to properly manage and control his team, and that in consequence thereof they ran away, and he was thrown out of the’ wagon and killed.
It is assigned as error that the court refused to give certain of the instructions asked by appellants. It was not error to refuse to tell the jury that, as a matter of law, the word “intoxication,” used in the Dram-shop act, means “excited to frenzy.” The denial of the instruction that no .recovery could be had in the case if the death of the deceased was occasioned by the negligence or want of caution or willful act of the deceased in handling or driving a dangerous team, was clearly not error. The instruction does not exclude the hypothesis that such negligence, want of caution or willful act was due to or caused by his intoxication.
Instruction No. 3 was properly refused, and for like reason. Even if the clips or fastenings on the whiffletrees dropped off and allowed the tongue of the wagon to drop down upon the road, and in consequence the team became frightened and unmanageable, and ran away, yet, non constat, that if the deceased had been duly sober and in fit condition to manage and control the team he would not have been able to prevent the running away of the horses or the overturning of the wagon.
The court refused to instruct the jury that they had “no right to consider any evidence in relation to William Williamson having been drunk on former occasions not connected with the time of his death, or any habit the deceased may have had of using intoxicating liquors prior to the day of his death.” It also, over the objections of appellants, admitted evidence of the habit of the deceased, prior to the day of his death, in relation to drinking liquors and becoming intoxicated. These rulings of the court are questioned by the assignments of error. It must be borne in mind that there are two assignments of breach in the declaration, and that the first of them is, that appellant Smith, in the lifetime of William Williamson, sold and gave said Williamson intoxicating liquors, he, said Williamson, then being an habitual drunkard, and that thereby his wife, the appellee, was injured in respect to her means of support. The challenged evidence was admissible under this first breach, and the giving of the proffered instruction would have been understood by the jury as excluding from their consideration all claim for damages based on said breach. There was no error in said rulings. The evidence was not admissible, however, for the purpose of forming a basis for the allowance of punitive damages. In Cobb v. The People, 84 Ill. 511" date_filed="1877-01-15" court="Ill." case_name="Cobb v. People">84 Ill. 511, this court held, that in a suit on a bond executed under section 5 of the Dram-shop act exemplary damages can not be recovered, but only such actual damages as the party for whose use the suit is brought may sustain, either in person, property or means of support. This case wa.s, by the instructions of the court, submitted to the jury upon the theory of actual damages, only, and therefore the qualification just noted is here unimportant.
We find no error in the judgment of affirmance rendered in the Appellate Court. It is affirmed.
Judgment affirmed.